dish_POSAM S-8_2018

As filed with the Securities and Exchange Commission on June 29, 2018

Registration No. 333-159461

 

 

UNITED STATES

SECURITIES AND EXCHANGE COMMISSION

Washington, D.C.  20549


POST-EFFECTIVE AMENDMENT NO. 1
TO

FORM S-8

 

REGISTRATION STATEMENT UNDER THE
SECURITIES ACT OF 1933

 

DISH NETWORK CORPORATION

(Exact name of issuer as specified in its charter)

 

 

 

 

Nevada

 

88-0336997

(State or other jurisdiction of incorporation or organization)

 

(I.R.S. Employer Identification No.)

 

 

 

9601 South Meridian Boulevard

 

 

Englewood, Colorado

 

80112

(Address of principal executive offices)

 

(Zip code)

 

DISH Network Corporation 2009 Stock Incentive Plan
Amended and Restated DISH Network Corporation Employee Stock Purchase Plan
(Full title of Plans)

Timothy Messner
Executive Vice President and General Counsel
DISH Network Corporation
9601 S. Meridian Blvd.
Englewood, Colorado 80112
(303) 723-1000
(Name, address and telephone number, including area code, of agent for service)

 

Indicate by check mark whether the registrant is a large accelerated filer, an accelerated filer, a non-accelerated filer or a smaller reporting company. See the definitions of large accelerated filer, accelerated filer and smaller reporting company in Rule 12b-2 of the Exchange Act. (Check one):

 

Large accelerated filer ☒

 

Accelerated filer ☐

 

 

 

Non-accelerated filer ☐
(Do not check if a smaller reporting company)

 

Smaller reporting company ☐

 

Emerging growth company ☐  

 

If an emerging growth company, indicate by check mark if the registrant has elected not to use the extended transition period for complying with any new or revised financial accounting standards provided pursuant to Section 13(a) of the Exchange Act.  ☐

 

CALCULATION OF REGISTRATION FEE

 

 

 

 

 

 

Title of Securities to be Registered(1)

Amount to be
Registered(1)

Proposed Maximum
Offering Price
Per Share(2)

Proposed Maximum
Aggregate
Offering Price(2)

Amount of
Registration
Fee(2)

Class A Common Stock, par value $0.01 per share

80,000,000 shares

______

_______________

___________

 

(1)

Shares of Class A Common Stock (Shares), par value $0.01 per share, of DISH Network Corporation (the “Registrant”), are registered hereunder. The Shares represent the aggregate number of Shares issuable pursuant to (1) the 2009 Stock Incentive Plan (the Stock Plan) and (2) the Amended and Restated Employee Stock Purchase Plan (“ESPP”) of DISH Network. This Post-Effective Amendment No. 1 is being filed to confirm the designation of the plans to which it relates.  The ESPP, as amended and restated, was approved by the Registrant’s shareholders on May 7, 2018.

(2)

All shares were previously registered under the Registration Statement on Form S-8 (File No. 333-159461) filed with the Securities and Exchange Commission (the “Commission”) on May 22, 2009. A registration fee of $74,191.68, calculated according to Rule 457(c) and (h) under the Securities Act, was paid upon the registration of the shares.  Accordingly, no fee is required herewith.

 

 

 

 


 

 

PART I
INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS

Item 1.Plan Information

 

Information required by Item 1 to be contained in the Section 10(a) prospectus is omitted from this Registration Statement in accordance with the Note to Part I of Form S-8.

Item 2.Registrant Information and Employee Plan Annual Information

 

Information required by Item 2 to be contained in the Section 10(a) prospectus is omitted from this Registration Statement in accordance with the Note to Part I of Form S-8.

PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT

Item 3.Incorporation of Documents by Reference

 

The following documents, which have heretofore been filed by the Registrant with the Securities and Exchange Commission (the SEC) pursuant to the Securities Exchange Act of 1934, as amended (the Exchange Act), are incorporated by reference into this Registration Statement:

(a)

The Registrants Annual Report on Form 10-K for its fiscal year ended December 31, 2017;

(b)

The Registrants Quarterly Report on Form 10-Q for the quarter ended March 31, 2018;

(c)

The Registrants Current Reports on Form 8-K filed on April 3, 2018, April 4, 2018, May 8, 2018 and June 8, 2018; and

(d)

The description of the Registrants Class A Common Stock contained in the Registrants Registration Statement on Form 8-A, declared effective June 20, 1995 by the SEC, pursuant to Section 12 of the Exchange Act.

All documents subsequently filed by the Registrant pursuant to Sections 13(a), 13(c), 14 and 15(d) of the Exchange Act after the date of this Registration Statement on Form S-8 and prior to such time as the Registrant files a post-effective amendment to this Registration Statement on Form S-8 that indicates that all securities offered hereby have been sold, or which deregisters all such securities then remaining unsold, shall be deemed to be incorporated by reference herein and to be a part hereof from the date of filing such reports and documents.

Any statement contained in a document incorporated or deemed to be incorporated by reference herein shall be deemed to be modified or superseded for purposes of this Registration Statement to the extent that a statement contained in any subsequently-filed document that also is deemed to be incorporated by reference herein modifies or supersedes such statement.

Item 4.Description of Securities

 

Not applicable.

Item 5.Interests of Named Experts and Counsel

 

The validity of the securities being registered hereunder is being passed upon for the Registrant by Timothy A. Messner. As of June 29, 2018, Mr. Messner owned, directly and indirectly, 12,294 shares of Class A Common Stock which includes the right to acquire 11,100 additional shares of the Registrant’s Class A Common Stock within 60 days of June 29, 2018.

 

Item 6.Indemnification of Directors and Officers

 

Chapter 78.7502(1) of the Nevada Revised Statutes allows the Registrant to indemnify any person made or threatened to be made a party to any action (except an action by or in the right of the Registrant, a derivative action), by reason of the fact that he is or was a director, officer, employee or agent of the Registrant, or is or was serving at the request of the Registrant as a director, officer, employee or agent of another corporation, against expenses including attorneys fees, judgments, fines and amounts paid in settlement actually and reasonably incurred by him in connection with the action, suit or proceeding if he acted in a good faith manner which he reasonably believed to be in or not opposed to the best interests of the Registrant, and, with respect to any criminal proceeding, had no reasonable cause to believe that his conduct was unlawful. Under chapter 78.7502(2), a similar standard of care applies to derivative actions, except that indemnification is limited solely to expenses (including attorneys fees) incurred in connection with the defense or settlement of the action and court approval of the indemnification is required where the person is seeking advance payment of indemnifiable expenses prior to final disposition of the proceeding in question. Under chapter 78.751, decisions as to the payment of indemnification are made by a majority of the Board of Directors at a meeting at which quorum of disinterested director is present, or by written opinion of special legal counsel, or by the stockholders.

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Provisions relating to liability and indemnification of officers and directors of the Registrant for acts by such officers and directors are contained in Article IX of the Amended and Restated Articles of Incorporation of the Registrant, Exhibit 4.1 hereto, and Article IX of the Registrants Amended and Restated Bylaws, Exhibit 4.2 hereto, which are incorporated by reference. These provisions state, among other things, that, consistent with and to the extent allowable under Nevada law, and upon the decision of a disinterested majority of the Registrants Board of Directors, or a written opinion of outside legal counsel, or the Registrants stockholders: (1) the Registrant shall indemnify any person who was or is a party or is threatened to be made a party to any threatened, pending or completed action, suit or proceeding, whether civil, criminal, administrative or investigative and whether formal or informal (other than an action by or in the right of the Registrant) by reason of the fact that he is or was a director, officer, employee, fiduciary or agent of the Registrant, or is or was serving at the request of the Registrant as a director, employee, fiduciary or agent of another corporation, partnership, joint venture, trust, employee benefit plan or other enterprise, against expenses (including attorneys fees), judgments, fines and amounts paid in settlement actually and reasonably incurred by him in connection with such action, suit or proceeding, if he conducted himself in good faith and in a manner he reasonably believed to be in or not opposed to the best interests of the Registrant, and with respect to any criminal action or proceeding, had no reasonable cause to believe his conduct was unlawful; and (2) the Registrant shall indemnify any person who was or is a party or is threatened to be made a party to any threatened, pending or completed action or suit by or in the right of the Registrant to procure a judgment in its favor by reason of the fact that he is or was a director, officer, employee, fiduciary or agent of the Registrant, or is or was serving at the request of the Registrant as a director, officer, employee or agent of another corporation, partnership, joint venture, trust, employee benefit plan or other enterprise against expenses (including attorneys fees) actually and reasonably incurred by him in connection with the defense or settlement of such action or suit if he acted in good faith and in a manner he reasonably believed to be in or not opposed to the best interests of the Registrant and except that no indemnification shall be made in respect to any claim, issue or matter as to which such person shall have adjudged to be liable for negligence or misconduct in the performance of his duty to the Registrant unless and only to the extent that the court in which such action or suit was brought shall determine upon application that despite the adjudication of liability but in view of all circumstances of the case, such person is fairly and reasonably entitled to indemnity for such expenses which such court shall deem proper.

Item 7.Exemption from Registration Claimed

 

Not applicable.

Item 8.Exhibits

 

 

Exhibit
Number

Description

4.1

Amended and Restated Articles of Incorporation of DISH Network Corporation (incorporated by reference to Exhibit 3.1(a) on the Quarterly Report on Form 10-Q of DISH Network Corporation for the quarter ended June 30, 2003, Commission File No. 0-26176), as amended by the Certificate of Amendment to the Articles of Incorporation of DISH Network Corporation (incorporated by reference to Annex 1 on DISH Network Corporation’s Definitive Information Statement on Schedule 14C filed on December 31, 2007, Commission File No. 0-26176) and as further amended by the Certificate of Amendment to the Articles of Incorporation of DISH Network Corporation, effective November 3, 2015 (incorporated by reference to Exhibit 3.1 to the Current Report on Form 8-K of DISH Network Corporation filed November 3, 2015, Commission File No. 0-26176).

4.2

Amended and Restated Bylaws of DISH Network Corporation (incorporated by reference to Exhibit 3.1 to the Quarterly Report on Form 10-Q of DISH Network Corporation for the quarter ended September 30, 2014, Commission File No. 0-26176).

4.3

DISH Network Corporation 2009 Stock Incentive Plan (incorporated by reference to Appendix A to the Registrant’s Definitive Proxy Statement on Schedule 14A filed on September 19, 2014).

4.4

DISH Network Corporation Amended and Restated Employee Stock Purchase Plan (incorporated by reference to Appendix A to the Registrant’s Definitive Proxy Statement filed March 28, 2018).

5.1

Opinion of Timothy A. Messner (opinion re: legality)*

23.1

Consent of Timothy A. Messner (included in Exhibit 5.1 hereto)*

24.1

Powers of Attorney*

_____________________
*   Filed herewith

 

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Item 9.Undertakings

(a)

The undersigned Registrant hereby undertakes:

(1)

To file, during any period in which offers or sales are being made, a post-effective amendment to this Registration Statement:

(i)

To include any prospectus required by Section 10(a)(3) of the Securities Act;

(ii)

To reflect in the prospectus any facts or events arising after the effective date of the Registration Statement (or the most recent post-effective amendment thereof) which, individually or in the aggregate, represent a fundamental change in the information set forth in the Registration Statement. Notwithstanding the foregoing, any increase or decrease in volume of securities offered (if the total dollar value of securities offered would not exceed that which was registered) and any deviation from the low or high end of the estimated maximum offering range may be reflected in the form of prospectus filed with the Commission pursuant to Rule 424(b) if, in the aggregate, the changes in volume and price represent no more than 20 percent change in the maximum aggregate offering price set forth in the Calculation of Registration Fee table in the effective Registration Statement;

(iii)

To include any material information with respect to the plan of distribution not previously disclosed in the Registration Statement or any material change to such information in the Registration Statement;

provided,  however, that:

(A)

paragraphs (a)(1)(i) and (a)(1)(ii) of this section do not apply if the Registration Statement is on Form S-8, and the information required to be included in a post-effective amendment by these paragraphs is contained in reports filed with or furnished to the Commission by the Registrant pursuant to Section 13 or Section 15(d) of the Exchange Act that are incorporated by reference in this Registration Statement.

(2)

That, for the purpose of determining any liability under the Securities Act, each such post-effective amendment shall be deemed to be a new registration statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof.

(3)

To remove from registration by means of a post-effective amendment any of the securities being registered that remain unsold at the termination of the offering.

(b)

The undersigned Registrant hereby undertakes that, for purposes of determining any liability under the Securities Act, each filing of the Registrants Annual Report pursuant to Section 13(a) or 15(d) of the Exchange Act (and, where applicable, each filing of an employee benefit plans annual report pursuant to Section 15(d) of the Exchange Act) that is incorporated by reference in the Registration Statement shall be deemed to be a new registration statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof.

(c)

Insofar as indemnification for liabilities arising under the Securities Act may be permitted to directors, officers and controlling persons of the Registrant pursuant to the foregoing provisions, or otherwise, the Registrant has been advised that in the opinion of the Securities and Exchange Commission such indemnification is against public policy as expressed in the Securities Act and is, therefore, unenforceable. In the event that a claim for indemnification against such liabilities (other than the payment by the Registrant of expenses incurred or paid by a director, officer or controlling person of the Registrant in the successful defense of any action, suit or proceeding) is asserted by such director, officer or controlling person in connection with the securities being registered, the Registrant will, unless in the opinion of its counsel the matter has been settled by controlling precedent, submit to a court of appropriate jurisdiction the question whether such indemnification by it is against public policy as expressed in the Securities Act and will be governed by the final adjudication of such issue.

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SIGNATURES

Pursuant to the requirements of the Securities Act, the Registrant certifies that it has duly caused this Post-Effective Amendment No. 1 to Registration Statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of Englewood, State of Colorado, on  June 29, 2018.

 

 

 

 

 

 

 

DISH NETWORK CORPORATION

 

 

 

 

 

 

By:

/s/ Timothy A. Messner

 

Timothy A. Messner

 

Executive Vice President and General Counsel

 

(Duly Authorized Officer)

 

 

Pursuant to the requirements of the Securities Act of 1933, this Registration Statement has been signed by the following persons in the capacities and on the date indicated.

 

 

 

Signature

Title

Date

   /s/ W. Erik Carlson

W. Erik Carlson

President and Chief Executive Officer

(Principal Executive Officer)

June 29, 2018

  /s/ Steven E. Swain

Steven E. Swain

Senior Vice President and Chief Financial Officer

(Principal Financial Officer)

June 29, 2018

   /s/ Paul W. Orban

Paul W. Orban

Senior Vice President and Chief Accounting Officer

(Principal Accounting Officer)

June 29, 2018

   *

Charles W. Ergen

Chairman of the Board

June 29, 2018

   *

James DeFranco

Director and Executive Vice President

June 29, 2018

   *

George R. Brokaw

Director

June 29, 2018

   *

Cantey M. Ergen

Director

June 29, 2018

   *

Charles M Lillis

Director

June 29, 2018

   *

Afshin Mohebbi

Director

June 29, 2018

   *

David K. Moskowitz

Director and Senior Advisor

June 29, 2018

   *

Tom A. Ortolf

Director

June 29, 2018

   *

Carl E. Vogel

Director and Senior Advisor

June 29, 2018

 

 

* By:     /s/ Timothy A. Messner

Timothy A. Messner

Attorney in Fact

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